9 Ways To Stay On Offense In Litigation

When you find yourself in court without a lawyer, you need to stay on offense.

Most self-represented litigants are defendants, but we shouldn’t be defensive in court. Offense is the best defense no matter which side you’re on.

Admittedly, that’s a tall order when you don’t even know your way around the courthouse.

But if you allow the other side to take and hold the initiative, you’ll be eaten alive in the process.

Litigation can be an awfully lengthy process, if you survive the first steps. There are ebbs and flows in every case, and that means lots of temptation to work on other areas in our lives that need attention.

So here are 9 ways to keep the focus on your litigation and to help you stay on offense:

Early in the case, a defendant should be sure to respond to the complaint to avoid a default. A plaintiff should analyze the complaint and anticipate the defendant’s motion to dismiss, preparing research and arguments to oppose it.

When the other side has a lawyer, be on the lookout for emergency motions, ex parte orders, and other procedural tricks designed to get the case decided without your input. Keep relevant legal authorities handy and be prepared to move the court to vacate any orders signed without a hearing.

Pay extra attention to filings from the other side that appear to be frivolous, especially when filed by a lawyer. Never assume the judge will find the filing as frivolous as you do. There may be hidden or subtle assertions or requests in the filing, so review it carefully for hints of an upcoming ambush.

Oppose everything filed by the other side on general principle, even if just for practice. You’ll want to make your opponent work at every step of the case.

Also on general principle, plan on objecting to any hearing procedures or case management decisions that aren’t proposed by you. It’s best to make your own proposals for how the court should proceed in each hearing and in the case generally.

Know when it’s best not to appear in court. Your absence may set up certain objections or grounds for appeal. For instance, you wouldn’t appear for a hearing without proper service of a complaint because doing so would admit proper service.

Gather evidence from your opponent with the intention of eliminating all factual disputes. This may take several rounds of discovery, employing all the tools of discovery.

When you’ve got the evidence to prove your case, file a summary judgment motion. Even if it’s unsuccessful, the court will have a clear sense of the case you’ll bring to trial. And it could bring your opponent to the settlement table.

Prepare to lose, even when you’re convinced you’ll win. Collect grounds for appeal throughout the case, so if the judgment goes against you, your appellate brief will be all but written. You’ll want to get every order in writing, and state every objection for the record. (Don’t forget to bring a court reporter to each hearing for this purpose.)

An aggressive stance will serve you well in litigation. It may also keep your opponent off balance and keep you focused on a strategy to win.

What are some other ways to stay on offense in litigation? Share in the comments below.